ELECTORAL LAW

PUL 415

DR. IZEVBUWA

2nd November, 2021

COURSE OUTLINE

1. Historical antecedent of Election and Electoral Processes in Nigeria

2. Constitutional Development in Nigeria

3. Understanding Electoral Law

4. Sources of Electoral Law viz a viz Electoral Process

5. Pre-election litigations

6. Distinction between election petition and pre-election litigation

7. Presentation of election petition-- How are election petitions presented?

8. Content of a valid election petition

Books

 Law and Practice of Front Loading in Election Litigation by Preye Agedeh

 Electoral Act 2010

 Electoral Processes -- Ijaodola

 An Almanac on Complementary Judicial Precedent

WHAT IS AN ELECTION

What do you understand by the word “election?”

An election, from practical experience, simply entails the entire process of accreditation,
voting, counting of votes, the announcement of votes, score, the declaration of the winner
and the result, and finally, the giving out of the certificate of return. It also further includes
the democratic processes involved in party selection of their candidates to represent them
in the election process.

The word “election” is used in section 137(1)(b) of the 1999 Constitution (as amended) . In
that provision, it is explained that “election means the process of choosing by a popular
vote, a candidate for a political office in a democratic system of government.”

For the purpose of effective electoral processes, the Independent National Electoral
Commission was established by virtue of section 152 of the 1999 Constitution (as amended)
and this body, though by virtue of the Electoral Act 2010 came out very many functions and
under section 2 of that Act, the following functions are entrenched:

1. To conduct voters and civil education of voters.

2. To promote knowledge of sound democratic election processes,

3. To conduct any referendum required to be conducted pursuant to the 1999 Constitution

(as amended) or any other law or Act of the National Assembly.

From the above explanation, it is evidently clear that the word “election” is not restricted to
the activities at the polling booth or war at the day of election. It involves the entire process
from voting by the political parties to choose their candidates to the virtual issuance of the
certificate of return.

Section 156 of the Electoral Act 2010 defines “election” as “election held under the Act
which includes the referendeum.” it went further to define “general election” as “an
election held in the federation at large which may be at all levels and at regular intervals to
select officials to serve after the expiration of the full term of their predecessors.”

Ordinarily, the word “election” means “a vote to select the winner of a position or political
officer.”

It simply means the act of selecting someone or something. It is an exercise of deliberate

choice. It is a formal and organized choice by vote of a person for a political office or other
position. It simple refers to an act of electing or being elected.

Generally, the Electoral Act 2010 which is the most current, there is a provision for the
following:

1. General election

2. Bye-election

3. Re-run election

BYE-ELECTIONS:

Bakam & anor v. Aragbu & anor (2015) LPLR 40858

Chibok v. Bello (1993) 1NWLR pt. 26, p. 129

 What Do You Understand by Election Law or Electoral Law?

Election Law or Electoral law, used interchangeably, is a discipline falling at the juncture of
Constitutional Law and Political Science. Hence, it involved what is the politics of law and
the law of politics. It pertains to the regulation put in place for the ascertainment of the
choice of those who would rule and run the elective offices and of course the system of
government in the state.

Practically, electoral jurisprudence in Nigeria’s democracy deals mostly with the validity of
elections, commencing from those qualified to contest an election and the time when the
said candidate of this election is returned. It also involved the question as to the validity or
otherwise of the return of a particular candidate.

In the case of Enemuo v. Chief Dume & Ors (2006) All EWLR pt. 304, pg 509 at 541-542, the
Court of Appeal per Fagbiyi JSC held:

“In a situation where there is cancellation of an initial declaration of a candidate as a

winner, those tagged with the responsibility of conducting an election in a democratic
dispensation should appreciate that democracy can only strive through election and non-
selection of people’s representative. They are looked upon as men and women of affairs
whose opinion should be respected. They should be fearless and courageous. Above all,
they should operate with honest of purpose if democracy in Nigeria must take firm root
and continue to germinate.”

The essence of electoral process is the genuine representation of the will of the elected.
According to the Black’s Law Dictionary, “Electoral process” simply means “a method by
which a person is elected in a public office in a democratic society. It also means the
taking and counting of votes.”

Basically, some of the questions that are addressed by electoral law or election law includes
the following:
1. Which persons are entitled to vote and be voted for in an election. E.g. age of voting and
residency.

2. The procedure by which such persons must be registered to vote or present identification
in order to vote.

3. Which persons are entitled to hold office. E.g. residency, literacy and tax, among others.

4. The procedure for forming a party for election processes.

5. The procedure for selecting candidates to run for an election (primary election).

6. Rules for funding and/or financing campaign for candidates and their political parties, if
any.

7. Requirement for creating wards, polling units for the purpose of election.

8. Requirements for printing ballot BOXES?, ballot papers for election.

9. The procedure for voting, counting of votes and declaration of winners.

10. The procedure for challenging electoral results, establishing of electoral tribunals and
how to fight legal actions of promoting election results, among others.

Sources of Electoral Law

The following are identified as the sources of electoral law and they include:

1. The Constitution

2. Other statutes- Electoral Act 2010

3. Judicial decisions

4. The interplay between other sources.

ASSIGNMENT

GROUP A: With the aid of statutory provisions and case laws, examine in detail the known
sources of electoral law.

GROUP B: Examine in detail using case laws and statutory provisions, the ordinary and
technical meaning of the word “election.”

GROUP C: It is often known that election is held at general, bye-election, and of course, re-
run election. Examine in detail and with relevant case laws and statutory provisions, these
three types of elections.

WHAT IS ELECTORAL PROCESS?

Practice Question: pre-election matters are of more import than post-election matters.
Discuss.

“Elections” as understood in Nigeria pertains to the choice of people to fix specific public
office or offices; this involved voting. The reason for this is quite clear. It is now as dramatic
that when a government lasts for too long, it deteriorates by insensible degree,
Under section 190 CFRN (as amended), election must be such that is conducted by an
independent body. In similar vein, section 153 CFRN, the Independent National Electoral
Comission was established.

Read section 1, Electoral Act 2010

It is in this process that political leaders in this country are elected.

In the case of Ojukwu v. Chief Obasanjo & ors (2003) All Federation Weekly Law Report
pt.82, the Supreme Court in affirming decision of Court of Appeal above stated that the
appointment of the defendant (Chief Obasanjo) as the head of the Federal Military
government made him President of the Supreme Military Council and not of the Federal
Republic of Nigeria.

Indeed, it must be understood here and now that the office of the federal government of
Nigeria is made by election under 1999 constitution and not by appointmnent.

See the Supreme Court case of Ojukwu v. Chief Obasanjo & ors (2004) All Federation
Weekly Law Report pt. 222 pg. 166.

Note further that Electoral Process constitutes the following:

a. Accreditation

b. Voting

c. Collation of votes

d. Recording of results on the relevant INEC forms

e. Declaration of results/handing over of the certificate of return

See INEC & anor v. Ray & anor 2005 All FWLR pt. 265 pg. 1047
See also Prince Nnaji v. Prince Agbo & anor (2006) All FWLR pt. 305 pg. 736

PRE-ELECTION LITIGATION

No doubt we are aware that pre-election matters in Nigeria today are more in number than
election matters themself. In view of the increasing importance placed on pre-election
matters in Nigerian Justic System, and the continual need to streamline judicial intervention
of pre-election matters, the 1999 Constitution has defined “pre-election matter” in section
285(14). This section was introduced through the Constitution (4th Alteration no.21) at
2017, and states:

“For the purpose for the purpose of this section, “preelection matter” means any suit by –

(a) an aspirant who complains that any of the provisions of the Electoral Act or any Act of
the National Assembly regulating the conduct of primaries of political parties and the
provisions of the guidelines of a political party for conduct of party primaries has not been
complied with by a political party in respect of the selection or nomination of candidates
for an election;

(b) an aspirant challenging the actions, decisions or activities of the Independent National
Electoral Commission in respect of his participation in an election or who complains that
the provisions of the Electoral Act or any Act of the National Assembly regulating elections
in Nigeria Sections Provisions of the Constitution Provisions of the Bill Remarks has not
been complied with by the Independent National Electoral Commission in respect of the
selection or nomination of candidates and participation in an election; and

(c) a political party challenging the actions, decisions or activities of the Independent
National Electoral Commission disqualifying its candidate from participating in an election
or a complaint that the provisions of the Electoral Act or any other applicable law has not
been complied with by the Independent National Electoral Commission in respect of the
nomination of candidates of political parties for an election, timetable for an election,
registration of voters and other activities of the Commission in respect of preparation for
an election”.

The above definitions clearly show what pre-election matters are and the parties who can
file action to pre-election matters.

I am not aware of any case at the moment where these provisions have been interpreted by
the court but it is said to conclude that since the wordings are plain and unambiguous, the
courts would apply appropriate rules of interpretation.

In the case Hassan & ors v. Ararume & ors (2015) LPELR 40828 SC, the court held “once the
words used in a statute or document are clear and free from ambiguity, the court should
give natural or ordinary meaning to it without embellishment.”

Again, from the above definition, it is evident that two classes of persons are entitled or
conferred with the locus standard to pre-initiate the pre-election. These are:

1. The Aspirant, who is a natural person

2. The Political Party, which is an artificial person

14th December, 2021

Who, then, is an Aspirant

See the following cases:

 Jed v. Iyortyom (2014) 14 NWLR pt. 1428 p. 573

 APC v. Lere (2020) 1 NWLR pt.1705 p. 254

 Salim v. CPC & Ors (2013) LPELR p. 21026

Who is an Aspirant?

By virtue of the provision of section 156 of the Electoral Act, an aspirant is defined:

“As a person who aspires to seek and contest an election to a democratic office.”

In PDP v. Sylva (2012) 13 NWLR pt. 1316 p.85, the Supreme Court stated as follows:

“An aspirant is a person with a strong desire to achieve a position of importance or to win
a competition and must be a person who contested the primaries.”

An aspirant must be a candidate in the primaries. In the case of Emenike v. PDP (2012)
LPELR p.7802, the Supreme Court stated the position as follows: “The apellants herein, as
extant in the record of the court of appeal admitted by himself that he did not take part in
the primary election authorized and organized by the national working committee of the
first respondent. The appellants who relied on the unauthorized primary conducted by the
state executive committee after unlawfully and unilaterally modifying the party guidelines
echibit 7 missed the road. Since he did not take part in the valid primary election, to my
mind he has no competent cause of sction to activate the jurisdiction of the trial court.
The appellant had no vires to initiate the action.”

The Supreme Court further summarised the meaning of the word “Aspirant” in Eze v. PDP &
ors (2018) Sc p.38 (d) - (e)

a) Wherein the Supreme Court states on Who is an Aspirant in relation to election:

An aspirant is a person who contested the primary election of his party. He must be
someone who actually participates in the primary election he is challenging. What is more,
the primary election he is talking about must have been conducted by the National
Executive Committee of the party.
It must be noted here that for you to be regarded as an aspirant, you must satisfy the two
conditions stated above as that becomes the fundamental to the locus standi for
substituting an action in pre-election litigation.

Indeed, for a person to dictate a pre-election matter, such person must be first an aspirant
as clearly stated by section 87(9).

Section 78(1) of the Electoral Act.

For the purpose of understanding what political parties entails, it shows how political parties
are registered.

A political party is an organization of people who have the same political ideology, who have
been fully registered by the appropriate electoral body for the purpose of filling in
conditions for electoral positions.

Jurisdiction of Courts in Pre-Election Matters

When we talk of jurisdiction, we talk about power to act. Therefore, the jurisdiction of a
court simply means the power of the court to decide the issues in controversy between the
contending parties.

Practically, where court(s) lack jurisdiction to entertain a matter, what that means is that the
court is stopped from performing or exercising any power and whatever decision the court
reached is a nullity.

The scope of the jurisdiction of courts in pre-election matters is clearly provided under
section 87(9) of the Electoral Act which provides thus:

“Notwithstanding the provisions of this Act or rules of a political party, an aspirant who
complains that any of the provisions of this Act and the guidelines of the political party
has not been complied with in the selection or nomination of the person in the political
party may apply to the Federal High Court or High Court of the State for redress.”
From the provisions stated above, it is clearly evident that the High Court of a State, the
Federal Court and the High Court of the FCT all have concurrent jurisdiction to entertain and
hear and determine matters of litigation arising therefrom.

It must be noted that the Electoral Act has deliberately conferred on these courts
concurrent jurisdiction contrary to the provisions of the constitution.

Election matters are sui generis (in a class of its own). Thus, it does not fall with other
matters and has nothing to do with the provisions of the Constitution. Thus, it can’t be void.

The initiation of the National Assembly in enacting the Electoral Act which cases are sui
generis is to confer concurrent jurisdiction on those courts with the sole aim that aggrieved
parties have a range of choices to ventilate their grievances.

Note that a pre-election matter submitted prior to the conduct of an election subsists even
after the election and the court continued to exercise its jurisdiction on such matter despite
the conduct of the election.

See the case of APC & ors v. Obaseki & ors (2020) SC

Gwede v. INEC & ors (2014) LPELR pg. 42089

See also the case LAU v. PDP & ors (2017) LPELR pg. 42800. Here, the Supreme Court
stated: “Now, the issue is whether the court below was right since the election of 28/3/16
had been held and the winner decleared. The pre-election matter has become academic,
but there is nothing outstanding and controversial about this issue which is well settled.”

LIGWE v. Okpokoyi wherein Okoro JSC observed “there is no controversy that pre-election
matters which are filed in the High Court before election can be held up to the Supreme
Court notwithstanding the holding of the election and declaration of result… Even where
the winner of the election had been sworn into the office, that does not make the pre-
election matter to abate or be turned into an academic exercise.
QUESTION 1: We all know that section 232 of the 1999 Constitution provides for where the
Supreme Court would have original jurisdiction. Does this extend to election matter? See
the case of Gwede v. INEC (supra).

QUESTION 2: Are there time limits for filing of pre-election matters and what are the
consequences of this issue?

Ordinarily, the courts here held in a plethora of cases, that in pre-election matters like
election matters, time is of the essence, and that as a general rule. Where a party is guilty of
due delay in instituting a matter in a High Court or Federal High Court, the Court usually
declines the jurisdiction of entertaining such matters. What this means by implication is that
if the pre-election matter was supposed to be filed within a specific period and the parties
neglected until the end of the election, such parties is rendered spontius officio.

Provisions of the Law in Pre-Election Matter on Time Limits

Prof. Ijaodola

Thursday, 18th November, 2021

Historical Antecedent of Election and Electoral Processes in Nigeria

As a government of the people, for the people and by the people (majority rule), people
come out to exercise their franchise on the voting process in order to elect their
representatives that will govern them for a period of time.
Abraham Lincoln on getting to the battlefield and seeing people die on the battlefield
pondered how people could die for their country like that, and he made the following
quote: “Democracy is a government of the people, by the people and for the people.”

Democracy allows people to have a say in their government. It does not give room for
autocracy.

In Nigeria, we have the National Assembly President, Vice President, etc.Democracy is

structured on it.

There is what we call franchise (Right to Vote and be Voted For). There must be registered
voters; those who can vote in most countries are individuals up to 18 years, and in some, up
to 21 years. Except you are disqualified, you have the right to vote and be voted for in a
democratic government.

Brief History of Nigerian Democracy

Issue of Nigerian Colonization 1914-1960

Nigeria was created in 1914 by Frederick Lord Lugard. The Northern and the Southern
areas were joined together and it became the Niger Area (Nigeria). Later, the colonial
masters allowed local representatives to represent the country in parliament, thus allowing
them to vote in the south and in some parts of the Nother. This gave rise to different
constitutions like

The Clifford Constitution 1922

Richards Constitution 1946

Macpherson Constitution 1951

Lyttleton Constitution 1957

Even with the above constitutions, only a few persons were permitted to vote. There was
limited franchise during the colonial period. Democracy was not widespread (For example,
in the North then, women were not allowed to vote).

Later, Nigeria had regions- Northern, Southern, and Eastern Region, and these regions were
based on democratic voting procedute. The governors were elected in their regional
parliament and its deputy and respective houses of Assembly.

 The Northern House of Assembly was located in Kaduna and the first governor was Sir
Ahmadu Bello while the late Chief Obafemi Awolowo was the first governor or Premier
of Western Nigeria which had its seat of government for the region in Ibadan.

 The Eastern region had its seat of government in Enugu and Nnamdi Azikwe was the
first governor.

Tutorial Question

Trace the history of Nigeria’s electoral processes during colonialism, that is, from 1914 to
1960 when Nigeria gained her independence.

SECOND STAGE OF NIGERIAN ELECTION

1960-1979

Between 1960-1963, there were elections in Nigeria in the Federal Parliament and Executive
System. There was:

a. Northern People’s Congress (NPC) by the late Alhaji Tafawa Belawa

b. National Council of Nigeria and the Cameroons (NCNC) led by the late Dr. Nnamdi Azikwe

c. Action Group (AG) led by the late Chief Obafemi Awolowo

People voted on a regular basis with a wider franchise--there was a general franchise in
some places and limited franchise in some places; women were not allowed to vote byt men
were allowed to vote until 1963 when there was crisis (the Northern region adopted the
universal male suffrage while the Western and Southern region adopted the universal adult
suffrage).

People alleged that both the 1959 and 1963 elections were rigged, but people had a wider
franchise. The crisis continued until the military struck in 1966 led by Aguiyi Ironsi. He
introduced a military system of government. That was his error as his ascendancy to power
was deemed a conspiracy by the coup plotters who were mainly igbo officers.

There was a counter coup in 1966 and Aguiyi Ironsi was killed. Yakubu Gowon came in.
Before 1966, Tafawa Belawa, Ahmadu Bello and other politicians were killed.

Oduregwu Ojukwu believed that he should be in power instead of Gowon, thus causing for
the formation of Biafra that led to the Nigerian Civil War (1967-1970).

Yakubu Gowon created 12 states and he appointed governors and they were governed by
edicts until 1976 where there was slight election but before the election, Gowon was
overthrown by Murtala Mohammed.

In 1976, Mohammed was killed and Obasanjo came in and handed over to a democratic
system in 1979.

THIRD STAGE OF NIGERIAN ELECTION

1979-1999

In 1983, Democracy was terminated by a coup and Mohammed Buhari came on board.

In 1985, Buhari was overthrown and Ibrahim Babangida came on board. So Nigeria was
bound by military rule.
In 1987, Babangida introduced a democratic governance to the local level. People were
elected into government on a non-judicial basis at the Local Government level.

In 1991, elections were held in different states to elect the state’s executive arm of
government--governors in a state.

In 1993, a presidential election was held and believed to have been won by Chief M.K.O
Abiola but power was not handed over to him by the then-Chairman of the National
Electoral Commission--Humphrey Nwosu.

On 17th November, 1993, General Sani Abacha sacked the interior National Government
and declared himself the President of Nigeria. He ruled until 1998 when he died.

General Abdulsalam Abubakar came on board in June 1998 and he restored democracy.

Based on the 1999 Constitution of Nigeria, Obasanjo came on board (1999-2007) then
Umaru Musa Yar’Adua (2007-2010), Goodluck Ebele Jonathan (2010-2015), Muhammadu
Buhari (2015-date).

Nigeria is still in the democratic process and people are still allowed to vote based on the
constitution.

There were four military coups: 1963, 1979, 1983, and 1999 and they have been described
as the “first republic, second republic, third republic and fourth republic.”

In law, this is wrong--you don’t count the coups. Nigeria has only one Republic and that is
that of 1963. But this was disrupted by military rule in 1979 which was disrupted again, then
came back again and in 1983. Later, military came back again and in 1999, the civilian came
back.

In Nigeria today, we operate the democratic system where people are allowed to register
and vote. Nigeria has 36 states with the FCT in Abuja.
It operates under the 1999 Constitution and this Constitution brought electoral process and
put coup away. The law states that no one can govern Nigeria except through the electoral
process.

Tutorial Questions

1. State the issue of Nigerian democratic process from 1960-1979 and 1979-1999

2. Show the advantages of a democratic system of government against other forms of

government such as autocracy.

3. Distinguish between the federal system and parliamentary system of government.